19 Fla. L. Weekly Supp. 208a
Online Reference: FLWSUPP 1903BROOInsurance — Personal injury protection — Demand letter that cited wrong statutory subsection and misstated amount of time allowed for response was substantially compliant with statute where PIP insurer was given notice of what medical provider was seeking and suffered no prejudice by language in letter
THE PERSONAL INJURY CLINIC, INC. (A/A/O ANTHONY BROOKS), Plaintiff, v. SEMINOLE CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 09-1929 CC 21. November 22, 2010. Honorable Ana Maria Pando, Judge. Counsel: Ryan Peterson, Patiño Law Firm, Hialeah, for Plaintiff. Brian Goldstein and Felipe E. Diez, Felipe Diez, P.A., for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT ON PENALTY AND POSTAGE
In this action for No-Fault Benefits, the Plaintiff sent a demand letter on February 13, 2008 to the Defendant. The demand letter in question indicated that it was made pursuant to Fla. Stat. 627.736(11), and instructed that the Defendant had 15 days to pay in response to the demand letter. The Defendant, while paying some of the benefits in response to this demand letter, informed the Plaintiff in writing that it would not be paying penalty or postage, claiming the demand letter was defective for citing the wrong subsection of the statute and the wrong amount of time allowed for a response to the demand. Section 627.736, Florida Statutes (2008) changed the demand letter requirement to subsection (10) of that statute and gave the insurance company an additional 15 days to respond to a demand letter before suit could be filed. Here, the Plaintiff did not file a lawsuit until 2009, well after even the 30 day time period would have elapsed. The Plaintiff moved for summary judgment to recover the unpaid penalty and postage in the amount of $196.01 in penalty and $5.00 in postage.
The Defendant admitted at the hearing that if the Plaintiff’s demand letter was proper, it in fact owed the Plaintiff the penalty and postage. The Defendant argues that at the time, Menendez had not yet been heard by the Supreme Court of Florida, and that the Defendant relied upon Progressive Express Insurance Co., Inc. v. Menendez, 979 So. 2d 324 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D811a], which was good law at the time, and held that the demand letter requirement could be applied retroactively. The Defendant argues that it acted properly at the time in denying the penalty and postage for the defective demand letter.
The 11th Circuit has deemed that the demand letter statute does not require strict compliance, but only substantial compliance. See United Auto. Ins. Co. v. Sarria, 15 Fla. L. Weekly Supp. 1150a (Fla. 11th Circ. Appellate, 2008). Here, the Plaintiff’s demand letter was substantially compliant with the statute despite indicating the Defendant had 15 days instead of 30 to pay, and despite being made pursuant to subsection (11) instead of subsection (10). The insurance company was given notice of what the Plaintiff was seeking, and suffered no prejudice by the language in the demand letter. For the reasons outlined in this Order and those stated in the record, the Court finds that the demand letter was substantially compliant, and the Plaintiff is entitled to recover penalty and postage.
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